The case for renaming the Court of Protection

View profile for Christine Bunting
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It’s now been about nine years since the Mental Capacity Act (MCA) came into force.  Fundamentally, the MCA provided the legislative framework to ensure that individuals who lack capacity to make decisions are treated with the same autonomy and respect given to adults with capacity.

Looking back, it seems almost Victorian that up until that point, once the Court of Protection (COP) appointed a ‘Receiver’ (now known as a Deputy), the assumption was that a person lacked capacity to make any decisions at all in relation to their property and financial affairs.

In reality, this meant that once a Deputy was appointed, they made nearly all decisions on a person’s behalf without ever considering whether that individual might be able to make a particular decision for themselves. 

The origins of the COP go back to the Middle Ages when the Crown assumed a ‘Parens Patriae’ jurisdiction.  This was the principle that political authority carried with it the responsibility to protect those who are perceived to be incapable of managing their own affairs (known at the time as ‘lunatics’!) 

The COP was established in 1947 and for approximately 60 years, the focus of the Court was very much on ‘protecting’ those assessed as being incapable of making their own decisions. The approach was very paternalistic and sought to make the complex issue of capacity a ‘black and white’ matter.

A question of capacity

The MCA has changed all that, with the empowerment of the individual at its core. And in terms of the evolution of the COP, it is clear that we are still at the beginning of a dawn of a new age. 

Needless to say, I am a huge fan of the Mental Capacity Act 2005.  Bearing in mind what had gone before it, the legislation was both groundbreaking and reflective of an overall shift in the way society views issues concerning capacity. 

One of the key principles of the MCA is that every person is assumed to have capacity to make a decision unless it is proved otherwise.  A Deputy or Attorney has an ongoing duty to continually consider whether a person has capacity to make each separate decision as and when it arises. 

It is only when it becomes clear that a person lacks capacity to make a particular decision at a specific time that the Deputy should act on their behalf.  People need to be allowed to make unwise decisions provided they demonstrate that they have the capacity to make their own decision.

When is a decision ‘unwise’?

So what exactly is an ‘unwise decision’?   

The example that I often use is my annual purchase of a new Leicester City shirt.  When considered objectively, there are many reasons why purchasing a Leicester City shirt could be considered as ‘unwise’.

The cost of the shirt is approximately £50 and it's usually of poor quality (they often fall apart in the wash). The club changes the design of the shirt only very slightly on an annual basis so it soon becomes ‘last year’s’ shirt. And up until very recently, Leicester’s performance would usually be average at best leaving me full of disappointment in my already ‘out of date shirt’ at the end of the season.

There’s no doubt that many people would see a decision to keep buying such an expensive and poor quality item as unwise. Indeed, up until the MCA came into force, a Deputy may well have objected to such a purchase in order to preserve funds.

If I were to sustain a serious head injury in the future and someone were to tell me that I could no longer purchase my Leicester shirt, even if I could explain my reasons for wanting it and be able to sensibly afford it, this would seem wholly unjust and unfair.

If a person is able to understand information about a decision, retain that information in their mind, weigh up the issues involved and communicate their decision, they should be allowed to make their own decision. If a pattern of ‘unwise’ decisions emerges, this could be seen as indicative of a wider issue regarding capacity which would need to be carefully reviewed.  

A Deputy or Attorney has a very important role in protecting the property and financial affairs of the person that they are appointed to look after.  However, their role is far more than just protection and if done properly should focus just as much on ‘empowerment’. Just because a person is unable to manage aspects of their own property and financial affairs no longer means that they have no say at all.

I would suggest that perhaps it does now seem that the name ‘Court of Protection’ is somewhat outdated. Perhaps a new name of the ‘Court of Protection and Empowerment’ would be more appropriate?